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Some new FUD about Linux and Oracle is floated
Thursday, April 23 2009 @ 03:53 PM EDT

Ah, no rest for me, as the FUD keeps on coming. Now there is a meme, echoed by none other than Rob Enderle, that much of the code in Linux belongs to Sun, and hence will soon be owned by Oracle, who will allegedly use that "power" to take over Linux:
Finally, it is believed that a substantial amount of code in Linux actually may belong to Sun and, with this acquisition, could belong to Oracle. While I don't expect a SCO moment, I would expect Oracle to use it as a bargaining chip to drive Linux in a direction it felt benefitted the firm.
"It is believed"?? By whom? Not by me, and I surely know quite a lot about the subject. I think I'd have heard. "Belong" in what sense? This claim will elicit strong guffaws from the guys who actually write Linux, but for any who might be tempted to believe such imaginings, let me explain some things, six reasons why this scenario is far-fetched and most likely impossible even if it were true.

First, does he means patents or copyrights or what? If patents, Sun's Jonathan Schwartz already made a public promise to use its patent portfolio to defend and protect both Red Hat and Ubuntu Linux against *any* patent threats. The Linux community relied upon that promise, and it would, I think, be an uphill battle to sue Linux over any of them now.

The GPL provides patent protection. Yes, GPLv2 also. If you doubt that, here's a paper you might find helpful, Potential Defenses of Implied Patent License Under the GPL[PDF]. That's written by two attorneys, Laura A. Majerus and Adam Pugh, and the paper talks about defenses under GPLv2, the license that Linux is provided under. Under GPLv3, the license is explicit, not just implied, but there is protection under both of the licenses. So Oracle is boxed in by the GPL, as is Sun or anyone who contributes to the kernel under the GPL or distributes Linux.

Also consider that the patent world has been turning upside down, first by the KSR decision on obviousness and then even more so after In Re Bilski, and no one even knows any more if software patents are even supposed to have patent protection and if so to what degree. We'll see.

Second, is he talking about copyrights? I suggest you hunt for copyrights in Linux, the kernel, and look for Sun copyrights. Next look for Oracle. What license do you see? The GPL. Why is that significant?

Oracle has been distributing Linux for some time, under the GPL. Here's just one mention of Linux on that page:

Oracle's Linux commitment began in 1998 with the first commercial database on Linux. Today, Oracle Database is #1 on Linux with more than 82% market share. Oracle Applications and Oracle Fusion Middleware continue to build significant momentum on Linux as well.
That date is important, because the GPL limits what they can ever do to anyone whose code Oracle distributed under the GPL, I'd opine, in a copyright context from that date, at least, forward.

Oracle is a contributor to Linux, as you can see by the list on that page. [Update: Here's their Free and Open Source Software from Oracle page.] That means it contributes knowingly under the GPL. One example from the list, a description of GOLD:

Gold is a new GNU linker, and is released under the GPL as a part of binutils. Gold is much faster than the existing GNU linker, and eventually it will become an incremental linker. Gold supports the ELF file format only. Oracle has been contributing features and bugfixes in order to assure that Gold correctly builds the Linux kernel and the Oracle Database.
Oracle has been involved in Linux for a long time, and they have excellent lawyers, as we saw in the SCO case, so they know their responsibilities and opportunities under the GPL. You can't sue Linux and also distribute it. Even if Oracle wanted to do what Enderle suggests, and there's no evidence it does, it can't, unless it wishes to fall down a rabbit hole into SCO's alternate universe.

Third, Oracle already learned an important lesson about Linux and trying to "take it over" from its earlier attempt to shove Red Hat under the bus, as I saw it, with its "Unbreakable Linux", otherwise known by me as the "Oh no, He Din't! Linux". Red Hat immediately responded by calling its Linux Unfakable Linux, and amen to that.

Fourth, if most of the code in Linux belongs to Sun, why did it feel a need to hop on to SCO's ugly little donkey and try to ride a while? It didn't need SCO, from Rob's account.

Fifth, Even he suggests that companies that choose litigation are committing suicide, so even if it were true that the code belongs to Sun, how would you use it to muscle anyone, without litigation?

Sixth, Oracle is a member of the Linux Foundation. And it also is a member of OIN, which provides certain benefits in exchange for pledges not to sue Linux. Here's the License Agreement. It'd be hard to be bad, although not impossible, after joining those organizations, and even if you wanted to be bad, the legal hurdles you'd have to jump over would be many and set very high. Anyway, Jim Zemlin of the Linux Foundation vouches for Oracle, who is a member, as is Sun, by the way.

Here's the problem any vendor has with GNU/Linux: you can't control it the way you can proprietary software, because you didn't write it all even if you contributed, and if you annoy the folks who actually did write it -- or their users, like me, for instance -- you won't do well because your name will be mud in the marketplace. You know the marketplace. The folks you need to buy what you are selling.

And the GPL limits how bad you can be, even if that is your goal. The GPL is like preventive medicine, and you don't have to be a member of the FSF to see the legal genius behind it. It does exactly what it intends, to make sure no one can muscle anyone or ever become "first among equals" and control Linux's destiny. IBM understands that. Red Hat understands that. And they are making money. Maybe it's time for the SCO types to stop dreaming of monetizing Linux in the old-fashioned proprietary way, where the goal is destruction of your competition, and instead work with the development model that encourages competition by excellence. It's a more productive model. Of course, one has to actually innovate for it to work, not just rip off other people's work.

In short, this is just FUD, or maybe hopeful dreaming on Enderle's part, and as written, I'd say it's going absolutely nowhere.

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